Lovelady v Griffiths - [2018] WADC 180

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LOVELADY -v- GRIFFITHS [2018] WADC 180
CORAM:   STAUDE DCJ
HEARD:   26 NOVEMBER 2018
DELIVERED          :   20 DECEMBER 2018
FILE NO/S:   APP GER 1 of 2018
BETWEEN:   CRAIG MATTHEW LOVELADY
Appellant
AND
JENNIFER DOROTHY GRIFFITHS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE POTTER
File Number             :   LMRO 6 of 2017

Catchwords:

Appeal - Restraining Orders Act 1997 - Appeal from magistrate's decision refusing costs upon the dismissal of a violence restraining order application - Whether right of appeal is provided by s 64 - Whether s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004 applies

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr P G Giudice
Respondent	:	No appearance

Solicitors:

Appellant	:	George Giudice Law Chambers
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Armstrong v Saxby [2016] WADC 87
Dey v Victorian Railways Commission (1949) 78 CLR 62
Goodwin v Phillips (1908) 7 CLR 1
Laurent v Fates [2015] WASCA 226
Mudie v Gainriver Pty Ltd (No 2) [2003] 32 Qd R 271
PAR v JLT [2015] WASC 362
Re Magistrate G Smith; Ex parte Ives [2010] WASC 249
Van der Feltz v Rispoli [2010] WADC 29

STAUDE DCJ:

Introduction

On 11 December 2017 in the Magistrates Court at Leeman, comprised of two Justices of the Peace, the respondent Mrs Griffiths obtained an interim violence restraining order against the appellant Mr Lovelady.
There is no transcript available of the hearing of the application at Leeman, but Mrs Griffiths' affidavit in support of her application stated that on 7 December 2017 at 7.30 am -
I was watering at Cliff Park, Greenhead, when I was approached by Mr Lovelady. He has had issues with the shire over work at the park. I had a bucket of plants to put in. Mr Lovelady took a photo of the plants and told me not to plant them. He was very aggressive and abusive to me, pointing his finger at me and shouting and swearing, telling me to leave. My husband was with me. I am not sure what would have happened if I was on my own. I am 73 years old. He is a large man in his 50s. … I am very scared and stressed over this incident.
Mr Lovelady objected to the order. The matter came to a final order hearing in the Magistrates Court at Geraldton on 17 April 2018 at which Mr Lovelady was represented by counsel.
The learned magistrate held that the evidence of Mrs Griffiths taken at its highest did not make out that the requirements for either a violence restraining order or a misconduct restraining order. His Honour held that her evidence did not disclose an act of personal violence by Mr Loveday, or indeed, show that he was likely to commit such an act in the future. In any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lovelady v Griffiths

Details

AGLC: Lovelady v Griffiths [2018] WADC 180
Case: [2018] WADC 180
Decision Date: 20 DECEMBER 2018

CaseChat Overview and Summary

The appeal before the court involved Lovelady, the appellant, and Griffiths, the respondent. The appellant sought to appeal a decision of the Magistrates Court of Victoria that dismissed an application for a violence restraining order. The appellant further sought an order for the respondent to pay the costs of the application. The appeal was heard by a judge of the Supreme Court of Victoria who reviewed the magistrate's decision. The key issue before the court was whether the appellant had the right to appeal the magistrate's decision, particularly regarding the costs of the application. The court also needed to determine if the magistrate's decision to dismiss the appeal was subject to appeal under section 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004.

The court considered the provisions of the Restraining Orders Act 1997 and the Magistrates Court (Civil Proceedings) Act 2004. It found that the magistrate's decision not to grant the violence restraining order was appealable under section 40(1)(a) of the Magistrates Court (Civil Proceedings) Act 2004. However, the court held that the right to appeal the costs decision was not provided by section 64 of the Restraining Orders Act 1997. The court reasoned that the right to appeal the costs decision did not exist as the Act only provided for an appeal against the grant or refusal of a restraining order, not the costs associated with the application. Consequently, the appeal was dismissed.

The court concluded that the magistrate's decision not to grant the violence restraining order was appealable, but the costs decision was not. The appeal was therefore dismissed, and no order was made regarding the costs. This decision clarifies the scope of appeal rights under the Restraining Orders Act 1997 and the Magistrates Court (Civil Proceedings) Act 2004, particularly in relation to costs decisions following the dismissal of a violence restraining order application.

Orders